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Medmarc's Quinley and Khin: Taking lessons from Merck. |
Kevin Quinley and Cindy Khin
A product liability trial against Merck's Cox-2 inhibitor Vioxx in Angleton, TX, late this summer resulted in a $253 million award, $229 million of which was for punitive damages.
Merck reportedly plans a vigorous appeal on multiple grounds, including claims that the court erroneously permitted testimony from unqualified experts, testimony not based on reliable scientific evidence, irrelevant and prejudicial evidence against Merck, and an undisclosed surprise witness against Merck. Observers on both sides agree that the award will likely drop to $26 million due to recent Texas tort reform caps on punitive damages.
Although it is easy in retrospect to second-guess Merck's defense strategy, the first Vioxx trial still offers instructive lessons on risk management and claim defense for life sciences companies and medtech manufacturers that—on a smaller scale—grapple with similar product liability issues. Following are some of the case's take-home lessons, based on the pitfalls into which Merck stumbled.